Citation Nr: 0801027
Decision Date: 01/10/08 Archive Date: 01/22/08
DOCKET NO. 06-19 463 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to a compensable rating for bilateral hearing
loss.
2. Entitlement to a total disability evaluation based upon
individual unemployability due to service-connected
disabilities (TDIU).
3. Entitlement to an initial rating in excess of 30 percent
for post traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran and representative
ATTORNEY FOR THE BOARD
S. Finn, Associate Counsel
INTRODUCTION
The veteran served in the United States Army from March 1967
to March 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2006 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Detroit, Michigan.
The veteran presented testimony before the undersigned
Veterans Law Judge at the RO in October 2007. A transcript
of this hearing has been associated with the veteran's VA
claims folder. At the hearing, the veteran and his
representative submitted additional evidence directly to the
Board. He and his representative have waived review of this
evidence by the RO. 38 C.F.R. § 20.1304 (2007). Further,
the veteran withdrew his claim for entitlement to an
increased rating in excess of 10 percent for tinnitus, as
indicated on page 2 of the hearing transcript. Therefore,
the tinnitu issue is not before the Board
Also at the hearing, the veteran's representative raised the
issues of service connection for hypertension and the
adequacy of the rating assigned in the May 2007 rating
decision for the veteran's service-connected PTSD, as
indicated on page 3 of the hearing transcript. The Board has
determined that the veteran's representative orally submitted
a Notice of Disagreement (NOD) with the May 2007 rating
decision as it relates to PTSD. In such cases, the appellate
process has commenced and the veteran is entitled to a
Statement of the Case (SOC) on the issue so that he may have
the opportunity to perfect an appeal of that issue. Manlicon
v. West, 12 Vet. App. 238 (1999). Both these issues are
referred back to the RO for appropriate action.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran is seeking a compensable rating for his service-
connected bilateral hearing loss, entitlement to TDIU, and an
increased rating for PTSD.
VA has a duty to assist claimants in the development of facts
pertinent to claims and VA must accomplish additional
development of the evidence if the record currently before it
is inadequate. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007).
In cases where the schedular rating is less than 100 percent,
a total disability rating may be assigned when the individual
is unable to secure or follow a substantially gainful
occupation as the result of service-connected disability,
without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341,
4.16 (2006). Total disability ratings for compensation may
be assigned, when the disabled person is, in the judgment of
the rating agency, unable to secure or follow a substantially
gainful occupation as a result of service-connected
disabilities, provided that, if there is only one such
disability, this disability shall be ratable at 60 percent or
more, and that, if there are two or more disabilities, there
shall be at least one disability ratable at 40 percent or
more, and sufficient additional disability to bring the
combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).
Disabilities resulting from common etiology or a single
accident will be considered as one disability. Id.
With respect to the veteran's bilateral hearing loss claim,
the Board notes that the veteran entered into evidence
several audiometric examinations dating from March 27, 2006
to March 2, 2007 and October 22, 2007 at the hearing. The
veteran's claims file, however, does not contain the October
22, 2007 examination. Given that the record is incomplete, a
remand is warranted.
With respect to the veteran's TDIU claim, the Board finds
that the resolution of his increased rating claim for PTSD
and service connection claim for hypertension may impact this
claim. For example, if the RO awards an increased rating for
PTSD and a single evaluation of 40 percent or greater (as the
combined 100 schedular evaluation has been satisfied)
resulted, the total rating issue will be rendered moot. See
Green v. West, 11 Vet. App. 472, 476 (1998); VAOPGCPREC 6-99,
64 Fed. Reg. 52375 (1999). Under these circumstances, the
Board finds that, as the above issues are inextricably
intertwined with the TDIU issue, they should be considered
together, and thus a decision by the Board on the veteran's
TDIU claim at this juncture would be premature. See
Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v.
Derwinski, 1 Vet. App. 180, 183 (1991).
The Board opines that further findings relating to all of the
veteran's service-connected disabilities are needed to
evaluate their current severity and whether they render him
unemployable. See 38 U.S.C.A. § 5103A (West 2002 & Supp.
2007). Consequently, the RO should arrange for the veteran
to undergo VA examinations by an audiologist and physicians
at the appropriate VA medical facility to evaluate all of his
service-connected disabilities and for an opinion on whether
they, either alone or in combination, render him
unemployable.
Because the veteran filed a timely NOD under 38 U.S.C.A. §
7105, appellate review of the RO's May 2007 rating decision
was properly initiated, and the RO was then obligated to
furnish him a SOC with respect to the issue of entitlement to
a higher initial rating for PTSD. 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. § 19.26 (2006). Since the veteran has not
been furnished a SOC that addresses the propriety of the
separate staged ratings assigned following the grant of
service connection for PTSD, a remand is warranted. See
Manlicon v. West, 12 Vet. App. 238 (1999).
The veteran is hereby advised that failure to report to any
scheduled examination, without good cause, may well result in
a denial of his claims. 38 C.F.R. § 3.655 (2007). Examples
of good cause include, but are not limited to, the illness or
hospitalization of the claimant and death of an immediate
family member. Id. If the veteran fails to report to any
scheduled examination, the RO must obtain and associate with
the claims file copies of any notices of the date and time of
the examination sent to the veteran by the pertinent VA
medical facility.
Accordingly, the case is REMANDED for the following action:
1. A letter should be sent to the
veteran explaining, in terms of 38
U.S.C.A. §§ 5103 and 5103A, the need for
additional evidence regarding his
claim(s). The letter must inform the
veteran about the information and
evidence that is necessary to
substantiate the claim(s), notify him of
the type of evidence that VA will seek to
provide, inform him of the type of
evidence that he is expected to provide,
and request that he provide any and all
relevant evidence currently in his
possession. Specifically, the October
2007 audiometric examination should be
requested.
The veteran should also be notified that,
in cases where service connection is
granted, both a disability evaluation and
an effective date for that evaluation
will be granted. See Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
2. Obtain copies of all treatment
records for the veteran's PTSD disability
from the Saginaw VAMC.
3. The RO should issue a statement of
the case to the veteran and
representative addressing the issue of
entitlement to an increased rating for
PTSD. Then, the RO should furnish the
veteran and his representative with a SOC
that outlines the evidence for and
addresses each of the staged schedular
rating periods for PTSD. The RO should
return this issue to the Board only if
the veteran timely files a substantive
appeal.
4. Then schedule the veteran for a VA
examination with the appropriate
specialist to determine whether he is
unable to secure and follow substantially
gainful occupation due to his service-
connected disabilities. Based on the
examination(s) and a review of the
record, each examiner should render an
opinion as to whether any of the
veteran's service-connected disabilities,
either alone or in concert, render him
unable to obtain or retain substantially
gainful employment. If so, the
examiner(s) should provide an approximate
date as to when these disabilities
rendered the veteran unemployable.
A complete rationale should be given for
all opinions and conclusions expressed in
a typewritten report.
5. If the veteran fails to report to any
scheduled examination, the RO must obtain
and associate with the claims file copies
of such notices of the dates and times of
the examinations sent to the
appellant/veteran by the pertinent VA
medical facility.
6. After completion of the above
development, the veteran's claims for
entitlement to a compensable rating for
bilateral hearing loss, TDIU, and an
increase rating for PTSD and should be
readjudicated. If the determination
remains adverse to the veteran, he and
his representative should be furnished
with a Supplemental Statement of the Case
and given an opportunity to respond.
Then, if indicated, this case should be returned to the Board
for the purpose of appellate disposition.
The veteran has the right to submit additional evidence and
argument on this matter. Kutscherousky v. West, 12 Vet. App.
369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).